Brinker v. Leinkauff

• Decision Date: 31 January 1887
• Citation: 64 Miss. 236,1 So. 170
• Court: Mississippi Supreme Court
• Parties: J. R. BRINKER v. J. H. LEINKAUFF ET AL

1 So. 170

64 Miss. 236

J. R. BRINKER v. J. H. LEINKAUFF ET AL

Supreme Court of Mississippi

January 31, 1887

APPEAL from the Circuit Court of Clay County, HON. W. M. ROGERS Judge.

Leinkauff & Strauss sued out a writ of attachment against one T. C Smith and caused the same to be levied on a certain stock of goods. The sheriff who executed the writ required Leinkauff &amp Strauss to give him an indemnifying bond, the body of which is as follows: "We, J. H. Leinkauff and Leopold Strauss partners in trade as Leinkauff & Strauss, as principals, and W. A. Bell and John Frenkel as sureties, bind ourselves to pay W. G. Stovall, sheriff of said county of Chickasaw twelve hundred and three and eight one-hundredths dollars, unless the said Leinkauff & Strauss shall indemnify and save harmless the said W. G. Stovall, sheriff, as aforesaid, against all damages which he may sustain in consequence of the seizure or sale of a certain lot of goods, wares, and merchandise of the value of dollars, levied on by said sheriff under a writ of attachment issued from the office of the clerk of the Circuit Court of Clay County, Mississippi, at the suit of the said Leinkauff & Strauss, and against the estate, real and personal, of T. C. Smith, and directed to the sheriff of said county of Chickasaw, said writ issued and dated January 15, 1884, an inventory of said goods, wares, and merchandise, filed with and attached to said writ of attachment; and, moreover, that the said Leinkauff & Strauss will pay and satisfy to any person claiming title to said goods, wares, and merchandise all damages which such person may sustain in consequence of such seizure or sale." J. R. Brinker interposed a claim to the goods and on the trial of that issue succeeded. Thereupon he began this action against the principals and sureties in the bond above set out to recover damages. The declaration in its statement of damages demands three hundred dollars attorney's fees, paid out in defending plaintiff's claim to the goods levied on under the attachment, and two hundred dollars for hotel bills paid out, and as compensation for loss of time occasioned by plaintiff's attendance on the trial of the claimants' issue under this attachment. It is not charged in the declaration that there was any fraud, willful wrong, or oppression in the levying of the attachment on the goods in question. The defendants demurred to the declaration. The demurrer was sustained. The plaintiff declined to amend his declaration and judgment final was entered up for the defendants. The plaintiff appealed.

Judgment affirmed.

White & Fox, for the appellant.

We say, first, that we could not recover on the bond for a willful trespass, because an agreement to indemnify in case of a willful trespass would be in contravention of public policy and void. Stark v. Ramey, 18 Cal. 622.

What we do contend is that attorney fees and expenses incurred at the trial of the claimant's issue are actual and not exemplary damages; that they are the legal, natural, proximate result or consequence of the wrongful levy, and being such, the indemnifying bond is an EXPRESS CONTRACT agreeing to pay these damages, and the parties to this contract, the obligors on the bond, are bound by virtue of the contract to pay the damages sued for.

Mr. Drake, in his work on Attachments, § 175, in speaking of the damages recoverable on attachment-bonds, says:

"What is this actual damage? On general principle it must be the natural, proximate, legal result or consequence of the wrongful act. Remote or speculative damages, resulting from injuries to credit, business, character, etc., cannot be recovered.

"Actual damages may be properly comprehended under two heads:

"First, expense and losses incurred by the party in making his defense to the attachment proceedings; second, loss occasioned by being deprived of the use of the property."

This text is quoted and approved by our own supreme court in construing the term "actual damages" as used in § 2430, Revised Code 1880. See Marqueze v. Southeimer, 59 Miss. 442.

Mr. Drake in § 176 of his work, referring to the above classification of actual damages, says:

"Under the first head will be allowed fess paid to counsel for services in the attachment-suit."

In a leading case it was held, "That the necessity of paying such counsel fees is an actual damage which the defendants have sustained."

It is not a mere matter of discretion, as the condition of the bond is imperative that the obligors shall pay such damages as the obligees may sustain by reason of the injunction. Edwards v. Bodine, 11 Paige 223.

Counsel fees are regarded as a proper subject of consideration in estimating the damages incurred, the loss being as DIRECT as any other. High on Injunctions, § 1685.

We refer also to Waple on Attachments 451; Baggett v Beard, 43 Miss. 123; Garret v. Logan, 19 Ala. 344; Seay v. Greenwood, 21 Ib. 491; Miller v....